Europe moves inexorably closer to agreement on the Unitary European Patent

Recent developments suggest that agreement on the holy grail of European patent law – a single patent, enforceable across (almost) the entire European Union – may finally be approaching fruition.

Agreed Framework

After about 40 years of negotiations, on 29 June 2012 leaders of the European Union, with the exception of those from Spain and Italy, reached agreement about implementation of the Unitary European Patent System (formerly called the Community Patent).

There are still details to be addressed, but the impasse about the proposed Unified Patent Court (UPC) and the use of the EU Court of Justice (ECJ) as the revision court has been resolved. In truly European fashion, a compromise was reached to solve these problems that have foundered for years because of conflicting national interests.

Paris will host the Central Division (the court of first instance). The first President of the newly created UPC will also be a French national.

The sound track record of specialist patent courts in Germany and the UK in patent litigation and revocation has also been recognised. More than 90% of patent litigation in Europe is conducted in the courts of Germany, France, UK and The Netherlands, in descending order. It has been agreed to establish two branches of the Unified Patent Court Central Division (so-called Sections) of the Central Division: London will have sole jurisdiction for infringement cases involving non-EU resident alleged infringers of European patents in the fields of chemistry, pharmaceuticals and human necessities. The sole domain of the Munich branch will be in Germany’s field of traditional strength: mechanical engineering.

For all other areas of technology, proceedings will be conducted (alongside traditionally attractive Parisian pursuits) by the French head office.

Becoming embroiled in litigation concerning patents in the growing field of IT overlaid bio-mechanics may perhaps justify the purchase of a Eurorail pass to attend hearing sessions at all three locations!

Obstacles to implementation

While substantive agreement has been achieved, it remains to be seen what the effect will be of the suggested deletion of Articles in the proposed Regulation on the Unitary European Patent, as a result of which the European Court of Justice will be excluded from the proposed Pan-European process.

Bureaucratic hurdles may yet need to be overcome.

Moreover, since the agreement on the UPC is an international one, it will require signing by each of the heads of state or governments of the acceding EU member states. The parliaments of various states may then still need to ratify the UPC for it to enter into force.

Once thirteen European member states have given their final blessing, the European patent system will be transformed forever. Thirteen is, however, a high bar to reach.

The excitement of the European Council about the prospect of having the first unitary European patents granted in 2014 may be premature bearing in mind that the UPC still needs to be established. Nonetheless it appears that all signals are set to ‘go’ in reaching the final goal: a truly unitary European patent (well, excluding Italy and Spain) with centralised prosecution, enforcement and defence mechanisms will finally see the light of day.

Some hope the new system will completely supersede the current European patent which, once granted, matures into a bundle of national EP patents confined and enforceable only within national boundaries.

Practically speaking, it remains to be seen whether the UPC will simply add another layer of complexity for decision makers in trying to determine which IP protection strategy is best suited to their specific needs.

This writer, also a German and European patent attorney, maintains a healthy scepticism!